US v. Hernandez-Estrada, No. 11-50417 (4-30-14) (en banc) (Thomas for majority; concurrence by M. Smith and concurrence by N.R. Smith). 

In an en banc decision, the 9th overrules its rigid statistical straitjacket precedent of "absolute disparity" when it comes to analyzing a fair-cross-section challenge to the jury panel.  In its place, the 9th instructs a more flexible approach of avoiding any one statistical method (all have problems) but requires statistical significance and legal significance.  This case arises from a challenge in the Southern District of California to the underrepresentation of Hispanics and African Americans in a jury poll.  The test established in Duren v. Missouri, 439 U.S. 357 (1979), requires (1) a distinctive group; (2) statistically underrepresented; and (3) the underrepresentation is caused by systematic exclusion.  Here, the groups were Hispanic and African Americans.  African Americans are under 6% of the population but an absolute disparity, as laid down in United States v. Rodriguez-Lara, 421 F.3d 932 (9th Cir. 2005), requires a bright line of 7.7% difference between group and representation.  This meant that African Americans could never mount a challenge, or other groups.  This 7.7% test had been heavily criticized as overly rigid and pernicious in excluding challenges of small groups.   The 9th, in overruling, surveys other statistical means used by other circuits, such as absolute impact, standard deviations, and others.  All have issues.  The 9th therefore did not select one that had to be used, but requires the court to use tests under the circumstances, with expert testimony, to establish statistical and legal significance. 

Once the 9th established this new test, it turned to the case at hand.  Here, though the defendant met the first two prongs, he failed on the third.  There were errors aplenty in the manner in which the Southern District summoned prospective jurors: an outdated English text inquiring about English proficiency, unsupervised clerks making language assessments, no return of questionnaires failing to list racial or ethnic make, and failure to keep up to date jury wheel statistics.  Alas, though there were errors, they were not systematically targeting distinctive groups.

Concurring, M. Smith (joined by two others) concurs in the judgment, but  bemoans the passing of a bright line test that served the courts well.  The test was simple and clear, and now the 9th has a hodgepodge that will result in supposed confusion in the district courts.  (Ed. note: So a bad test should be kept because it is clear?   A bad test should remain because it is effective in preventing arguably meritorious claims?) N.R. Smith concurs, complaining that this challenge meant no test used by any other circuit.  He questions whether this is an appropriate vehicle for overturning precedent given that the challenges fails all around.

Although the case was lost, the new test for cross section is exceedingly helpful, and will allow challenges to statistical and legal underrepresentation.

Congrats to Michele McKenzie of the Fed Defenders of San Diego for the successful challenge to the test.